HOUSE OF LORDS LIBRARY LIBRARY NOTE The Appellate Jurisdiction of the House of Lords (Updated November 2007) Glenn Dymond 15 November, 2007 LLN 2007/008 House of Lords Library Notes are compiled for the benefit of Members of Parliament and their personal staff. Authors are available to discuss the contents of the Notes with the Members and their staff but cannot advise members of the general public. Any comments on Library Notes should be sent to the Head of Research Services, House of Lords Library, London SW1A 0PW or emailed to [email protected]. Contents Introduction p. 1 I History of the Appellate Jurisdiction to 1948 p. 2 1. Origins – 1800 p. 2 2. 1801 – Present p. 5 II The Contemporary Judicial Work of the House p. 11 1. Jurisdiction p. 11 2. Constitution of the House for hearing and determining appeals p. 12 3. Appeal Committees and Appellate Committees p. 14 4. Judicial Committee of the Privy Council p. 15 III The Future Supreme Court of the United Kingdom p. 17 1. Constitutional Reform Act 2005 p. 17 2. Composition p. 17 3. Jurisdiction p. 18 4. Administration p. 19 5. Parliamentary disqualification p. 19 6. Accommodation and Costs for the Court p. 21 7. Lords debate 4 July 2007 p. 35 Bibliography p. 43 INTRODUCTION This Library Note focuses on the appellate jurisdiction of the House of Lords. Part I looks at the historical development of that jurisdiction, whilst Part II discusses the contemporary judicial work of the House, giving an overview of the current jurisdiction and composition of the Appellate and Appeal Committees, and including a look at the Law Lords’ role in the Judicial Committee of the Privy Council. Part III describes the new Supreme Court of the United Kingdom, to which the Lords’ appellate jurisdiction and the devolution jurisdiction of the Judicial Committee of the Privy Council will be transferred when the relevant provisions of the Constitutional Reform Act 2005 are brought into force. The Note supersedes LLN 2003/007. It updates LLN 2006/002, which contained a chronology of the Constitutional Reform Act 2005, tracing its antecedents and its passage through both Houses. 1 I. HISTORY OF THE APPELLATE JURISDICTION TO 1948 1. Origins – 1800 The origins of the appellate jurisdiction of the House of Lords lie in the distant precursor of Parliament, the Curia Regis, the advisory body to the King in the early Middle Ages, which combined what in modern parlance would be termed legislative, executive and judicial functions. The King dispensed justice through the Curia Regis and, although separate common law courts later split off, the “High Court of Parliament” retained its role as the highest court of royal justice. With the emergence in the fourteenth century of two distinct Houses, the House of Lords gradually inherited that role1. By the sixteenth century, however, the judicial work of the House was in marked decline. Between 1514 and 1589 only five cases are recorded in the Journal. The House did not accept any cases between 1589 and 1621, which may be attributed to improved procedures in the Court of King’s Bench and in the Court of Chancery. But the jurisdiction of the House was recognised both in legal treatises and in statute: thus it was acknowledged by the Error from the Queen’s Bench Act 1584 and by the Error Act 1588. In the 1620s, Henry Elsyng, Clerk of the Parliaments, commented on the judicial role of Parliament that “The execution of all our laws has been long since distributed by Parliament unto the inferior courts, in such sort as the subject is directed where to complain, and the Justices how to redress wrongs and punish offences. And this may be the reason of the Judges’ opinions in Thorpe’s case anno 31. H. 6. n. 27. That actions at Common Law are not determined in this High Court of Parliament. Yet complaints have ever been received in Parliament, as well of private wrongs as of public offences. And according to the quality of the person, and nature of the offence, they have been retained or referred to the Common Law.” (E. Read Foster (ed.), Judicature in Parliament, by Henry Elsyng (1991), page 7). Besides the right of a Peer to be tried by his Peers, Elsying identified six cases in which judicature still belonged to Parliament: 1) in judgments against delinquents, as well for capital crimes, as misdemeanours, on accusations by the Commons, either by their complaints, or impeachments; by information from the King; by complaint of private persons; 2) in reversing erroneous judgments in Parliament; 3) in reversing erroneous judgments given in the Court of King’s Bench; 4) in deciding of suits long depending either for difficulty or delay; 5) in hearing complaints of particular persons on petition; 6) in setting at liberty any of their own Members or servants imprisoned; and in staying the proceedings at the common law during the privilege of Parliament2. On 3rd March 1621, James I sent the petition of Edward Ewer, a notoriously persistent litigant, to the House of Lords. Ewer had asked that the record of his case in the Court of King’s Bench be reviewed by the House of Lords. The King’s decision was noted by other litigants and thirteen other petitions were accepted by the House in the 1621 Parliament. The number of petitions accepted increased markedly in the Parliament of 1624, 1626 and 16283. The petitions included 1 For a detailed analysis of this period see the classic accounts by Luke Owen Pike in A Constitutional History of the House of Lords (1894, Chapter XIII) and Sir William Holdsworth in A History of English Law (7th ed., 1956, Volume I, Chapter IV). 2 The right of a Peer to be tried by his Peers was abolished by the Criminal Justice Act 1948, as a result of an amendment in the House of Lords. Impeachment is technically still possible, but it was last used in 1804 with the impeachment of Lord Melville. 3 The total number of petitions accepted 1621-29 was 207; the number of petitions sent to the House was probably over 300. 2 both cases requesting a review of proceedings in a lower court and cases of first instance, where the petitioner took his grievance directly to the House. With the gradual increase in the number of petitions, the House appointed a standing Committee for Petitions which grew in size from 8 Members in 1621 to 39 Members in 1629. Justices in the lower courts and other high legal officials were summoned by writs of assistance to provide expert legal advice4. At first, petitions were brought to the Clerk of the Parliaments who arranged for them to be read to the House which then decided whether the petition should be accepted and referred to the Committee. The great increase in the number of petitions led the House to give the Committee the power to accept or reject petitions itself. After 1629, there was a period of eleven years when Charles I ruled without Parliament. The failure of the King’s personal rule led to the calling of the Short Parliament in the spring of 1640. The House of Lords soon appointed a Committee for Petitions containing 41 Members. The importance of the committee is shown by the fact that the lay Peers included few men who had been sympathetic to the personal rule of Charles I. When the King had to return later in the year to Parliament and summoned the Long Parliament in November 1640, the House of Lords had to deal with a large number of petitions pleading for redress from arbitrary actions by the King’s government in the 1630s. The gradual collapse of the King’s government allowed the House of Lords to assume a greater role as a judicial body. However, the House’s ability to act as a court of law was diminished by the outbreak of the Civil War in 1642 when the Lord Keeper, the Master of the Rolls and several of the judges decamped to Oxford where the King’s government was then established. Only a few of the legal assistants who normally served the House on a regular basis remained in London. From 1643, when the House acquiesced in the ordinance passed by the House of Commons for the seizure of private property, the Lords found it difficult to remain aloof from the highly partisan politics of the time. The end came when the Commons voted on 6th February 1649 “That the House of Peers is useless and dangerous and ought to be abolished.” The House was condemned as much for its judicial work as its legislative role5. The Convention Parliament which met between 25th April and 29th December 1660 saw the House of Lords restored to its former position. A Committee for Petitions was appointed on 2nd May. Petitioners turned to the House both for redress of grievances arising from the Civil War and Interregnum and for redress of private grievances as in the decade of the 1620s. Again, the House dealt with cases of first instance and cases appealing from decisions of the lower courts. However, a crisis with the House of Commons arose over the case of Thomas Skinner v. East India Company6. Skinner had entered the East India trade at a time when the Protectorate sponsored open trade. While he was establishing his trading base in the East, the Protectorate granted a monopoly of the trade to the East India Company which seized all of Skinner’s property in the East Indies.